Can gay marriage be “just”?

Same-sex marriage is, of course, the topic of the next two days at the Supreme Court. If you haven’t already, you may want to look at some of the briefs in cases, United States v. Windsor, which focuses on the Defense of Marriage Act, and Hollingworth v. Perry, a challenge to California’s Proposition #8.

In Windsor, I counted 89 submissions, in Perry 100. I may have missed a few and I was counting those since the Court said it would hear the cases. I am guessing that you don’t have time to read them all. I would read the main briefs in each case. Keep in mind, though, that because the California A-G refused to support Proposition #8, the main Perry briefs are not from the state but the Alliance Defending Freedom and the Center for Constitutional Jurisprudence, this last signed by former US Attorney General Edwin Meese and John C. Eastman.

But if you’re like me, as the same-sex marriage cases have progressed through the courts, you’ve found yourself remembering a moment in the movie Adam’s Rib (Tracy and Hepburn, 1949). The main characters — husband and wife, opposing attorneys in a case involving marriage and murder — are arguing. Tracy storms at Hepburn: “The law is the law, whether it’s good or bad. If it’s bad, the thing to do is to change it, not just to bust it wide open…. What is marriage? Tell me, that. It’s a contract; it’s the law.”

Those lines pretty much sum up both cases. Both arose when people who did not like a law decided to go to court to bust it open. And behind both is the question of the marriage contract.

For my part, the debate has missed a crucial point. Neither side has addressed what seems to me the basic question when dealing with any law. Is it just? And I do not see how this new law of marriage can possibly be just, initially to homosexual couples, later to heterosexual ones or, more likely, both.

Tracy’s on-screen point to Hepburn came straight from 18th century English legal commentator William Blackstone, that is, out of English common law at the time of our founding, the basis of marriage law in America even, with all its changes, today. ”Our law considers marriage in no other light than as a civil contract,” Blackstone wrote, adding that it was “intended for [the wife’s] protection and benefit.”

As in Blackstone’s time, besides maintaining what Blackstone called an “intolerably ill temper,” the principal way of breaking the marriage contract remains committing adultery. At the heart of the marriage contract is a pledge of sexual fidelity.

Now, I know, of course that marriage is more than a contract. It is a sacrament. It is a physical and spiritual union that, when it takes, transforms and deepens both man and woman. It is the core of family formation and clearly the best framework for bringing children into the world and raising them. But I am talking here about law, contracts and whether the marriage contract as it stands can be just to both same-sex and traditional couples. Period.

Now here is my problem.

If I were unfaithful, the marriage contract would give my wife the right to divorce me and, as they say, sue me for everything I’m worth and take our child, if we had one, with her. She may not choose to exercise that right. But she receives it, which most of us would agree is entirely just — in the case of a heterosexual couple.

But how can it be just to give one same-sex partner that kind of power over another because he or she had an affair — particularly if the affair was with another member of that sex? The risk of producing children, leading to a competing family, is non-existant. The other partner may leave the marriage, but why should he or she receive the same claim on the philanderer’s property or a preference if children are involved?

You may ask, does that mean that a heterosexual adulterer whose affair produces a child should be treated differently than one whose affair does not? We know that the courts — and wronged wives – are harsher on one than the other.

But if same-sex couples are brought under the marriage contract and it is not just to them, sooner or later there will be pressure to change the contract, either to, either to wipe out the demand of sexual fidelity — making the contract unjust to heterosexual couples — or come up with some messy compromise that leaves both kinds of couples worse off.

Some of the briefs in this week’s cases quote same-sex marriage advocates saying that the new law of marriage they seek will end marriage as we know it, transforming it, as one prominent advocate put it, “into something new.”

They may be in for a surprise. And whether or not they are, it is a fair bet that most everyone else will be.

Clark S. Judge: managing director, White House Writers Group, Inc.; chairman, Pacific Research Institute. This column first appeared on HughHewitt.com.